In addition to war stories, Justice Millette shared some insight about the inner workings of the Supreme Court:

It’s All Cyclical. The Court’s year operates cyclically, with each cycle keyed to the week during which the Court hears oral argument. For example, the Supreme Court will hear oral argument next week. In preparation, the individual justices received “big bankers boxes full of” the briefs and the appendices for those cases in July. In August, an individual justice was randomly assigned responsibility for each case. Next week, the Court will hear argument in those cases each morning. In the afternoon, the justices will meet to decide the cases. They will literally sit around a table and address the cases serially, with each having an opportunity to offer an opinion as to how each case should be decided and, more specifically, how the opinion should be written. (In this regard, the Supreme Court differs from the Court of Appeals.) Having reached its decisions, the Court will draft and circulate opinions for comment; the justice assigned responsibility for a case typically will author the opinion. The Court will then will then issue final opinions on the Friday of the following session–in this case, November 6.

Oral Argument Counts. Justice Millette indicated that something less than 80-90% of cases are decided on the basis of the briefs, although he did not give an exact figure. This suggests that oral argument matters in at least 1 out of 4 cases. When I spoke to him after the speech, he reiterated that he is a strong believer in oral argument.

Answer the Questions. In that vein, Justice Millette stressed that, when a lawyer is asked a question at oral argument, he or she must answer it. This is true even if the Court is asking for a concession. If it does not receive a responsive answer, the Court will return to the issue.

A Bit of Comfort. Justice Millette explained that–perhaps in contrast to certain other appellate courts–the Supreme Court of Virginia does not set out to embarrass lawyers, and generally will not pick on a lawyer who is having a rough argument. He cited one case last year in which Justice Koontz cautioned his colleagues against picking on a lawyer who was clearly having a bad day. But if lawyers are to be treated respectfully, they need to return the favor. The Supreme Court is a formal court, and its justices are not to be referred to as “you guys,” called by the wrong names, etc.

Clarity is Key. With respect to briefs, Justice Millette referred to Chief Justice Roberts’ recent comments at the Fourth Circuit Judicial Conference. He stressed the need for clarity in briefing. He cautioned that length does not necessarily translate into clarity.

And Length Counts. Justice Millette noted that, when he picks up a brief, he flips to the last page to check its length. As another justice once pointed out, “Page limits are not goals.”

Look for write up from Virginia Lawyer’s Weekly in the near future–I sat at a table with Peter Vieth, and he seemed to be taking pretty good notes.